Esonu Chukwunyere V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of Imo State High Court in charge No. HO/13c/2004, delivered on 11/7/2007 by Hon. Justice Ngozi Opara, wherein her Lordship convicted Appellant, for offence of murder and sentenced him to death by hanging.

Appellant (as Accused person) was charged along with Obineche Chukwunyere for the murder of one Beatrice Kwemma by killing her using an axe, contrary to Section 319 of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable in Imo State of Nigeria. The offence was said to have been committed on 14/1/2002, at Ozara Ihube, Okigwe of Okigwe Local Government Area in Okigwe Judicial Division of Imo State.

Appellant had pleaded Not Guilty to the charge, and in his statement to the police, upon his arrest on 17/1/2002, Counsel said, he raised a defence of alibi. The statement was admitted as Exhibit 4 at the trial. Appellant said the Police refused or neglected to investigate the alibi that he was not at the scene of crime.

A brief facts of the case, at the Court below, showed that the deceased, Beatrice Kwemma, was murdered on 14/1/2002. At about 8:00am Beatrice Kwemma was preparing to go to the farm to harvest cassava. She instructed her grandson, Chijioke Kwemma, to come to the farm later and carry home the harvest.

The Prosecution said that it was at that point that Appellant and one Obineche, in company of another person, passed opposite the house of PW1; Appellant was wearing dark glasses and they focused their attention at the house of the deceased as they passed, while the deceased was discussing with her grandson; the deceased later went to the farm, and when PW1 joined her, in the farm, he saw the Appellant cutting the grandmother (deceased) with an axe with one other boy he (PW1) could not identify; the deceased was already down on the ground as Appellant was cutting her with the axe, while the other person was holding her leg.

PW1 was terrified and ran to the house of the father’s sister, Catherine Nwakamma, to report. He also reported this to the Village Chief. The villagers trooped out to the farm, but could not see the assailants. They saw the corpse of the deceased lying on the ground, and while they were looking for the killers, in the farm, somebody saw and picked a dark glasses in the farm, which belonged to the Appellant.

PW2 told the Court how he heard the noise about the death of the deceased and went to the Village Chief’s house to hear from PW1 what actually happened; they left to the farm, where they saw the body of the deceased woman lying on the ground; he said that while they were looking for the killers, he picked the dark goggle (glasses), which PW1 confirmed belonged to the Appellant, and he handed it over to the Police.

PW3 was a Medical Doctor. He tendered Exhibit 2 – the Post Mortem report, which stated that the cause of death was a deep laceration, on the left jaw, soft tissue swelling of the scalp, with multiple compound fracture of the skull. In the doctor’s opinion, the cause of death was as a result of brain injury, caused by blunt/sharp object. PW4 was the Investigation Police Officer (IPO).

He tendered the statements of the Appellant, dated 17/1/2002 as Exhibits 4 and 4A. He informed the Court that the eye glasses (goggles) that were recovered were transferred with the original case file to Owerri C.I.D. and were with the Exhibit keeper.

At the close of the prosecution’s case, Appellant gave evidence in his defence as DW1. He called no witness. He claimed he went home (the village) on 13/1/02 and left on 14/1/02 at about 8am. He denied killing the deceased.

At the conclusion of the trial, the trial Court believed the evidence of the prosecution and convicted the Appellant, while discharging the 1st Accused Person, Chineche Chukwunyere. She held:

“Besides, PW1 gave graphic details how the deed was done. He stated that that morning he saw the accused, with one other, walking past their home, discussing. This was several times. Later as he went to bring home harvested cassava by the deceased in the farm, he saw the accused with another, still at large, dealing with the deceased. The unknown man held the deceased by the legs while the accused used an axe to inflict injuries on the head of the deceased.

The law is that where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted by such evidence. See the cases of Odidiha vs. The State (1977) 2 SC 21; Patrick Njovens vs. The State (1973) 5 SC 17. From the above, I believe that the Prosecution has provided direct and positive evidence of participation by the accused…”